State of New York
Department of State
Committee on Open Government

The staff of the Committee on Open Government is authorized to issue advisory opinions.
The ensuing staff advisory opinion is based solely upon the information presented in your
correspondence.

Dear Mr. Symer:

I have received your letter of May 26. You referred to a telephone conversation some
time ago pertaining to a request that you made to obtain payroll information from a school
district and to an article in which the Town Clerk of the Town of Lancaster expressed the
view that a municipality "is under no obligation to create a record." You suggested that
his statement may be "at variance" with the advice given to you when we spoke.

In this regard, with certain exceptions, the Freedom of Information Law is does not
require an agency to create records. Section 89(3) of the Law states in relevant part that:

"Nothing in this article [the Freedom of Information Law] shall be
construed to require any entity to prepare any record not in possession
or maintained by such entity except the records specified in
subdivision three of section eighty-seven..."

However, a payroll list of employees is included among the records required to be kept
pursuant to "subdivision three of section eighty-seven" of the Law. Specifically, that
provision states in relevant part that:

"Each agency shall maintain...

(b) a record setting forth the name, public office address, title and
salary of every officer or employee of the agency... "

As such, a payroll record that identifies all officers or employees by name, public office
address, title and salary must be prepared to comply with the Freedom of Information
Law. Moreover, I believe that a payroll list identifying employees, must be disclosed.

In analyzing rights of access, of primary relevance is º87(2)(b), of the Freedom of
Information Law, which permits an agency to withhold record or portions of records when
disclosure would result in "an unwarranted invasion of personal privacy." However,
payroll information has been found by the courts to be available [see e.g., Miller v. Village
of Freeport, 379 NYS 2d 517, 51 AD 2d 765, (1976); Gannett Co. v. County of Monroe,
59 AD 2d 309 (1977), aff'd 45 NYS 2d 954 (1978)]. In addition, this Committee has
advised and the courts have upheld the notion that records that are relevant to the
performance of the official duties of public employees are generally available, for
disclosure in such instances would result in a permissible as opposed to an unwarranted
invasion of personal privacy [Gannett, supra; Capital Newspapers v. Burns, 109 AD 2d
292, aff'd 67 NY 2d 562 (1986) ; Steinmetz v. Board of Education, East Moriches, Sup.
Ct., Suffolk Cty., NYLJ, October 30, 1980; Farrell v. Village Board of Trustees, 372 NYS
2d 905 (1975) ; and Montes v. State, 406 NYS 664 (Court of Claims 1978)]. As stated
prior to the enactment of the Freedom of Information Law, payroll records:

"...represent important fiscal as well as operational information. The
identity of the employees and their salaries are vital statistics kept in
the proper recordation of departmental functioning and are the
primary sources of protection against employment favortism. They
are subject therefore to inspection" Winston v. Mangan, 338 NYS 2d
654, 664 (1972)].

In short, a record identifying agency employees by name, public office address, title and
salary must in my view be maintained and made available.

I hope that the foregoing serves to clarify your understanding of the matter and that I
have been of assistance.